Amicus Curiae Brief — Scott Breimeister, Petitioner v. United States

No. 25-407

In the Supreme Court of the United States

SCOTT BREIMEISTER,

Petitioner,

v.

UNITED STATES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AND THE

CATO INSTITUTE AS AMICI CURIAE IN

SUPPORT OF PETITIONER

BARBARA E. BERGMAN

MONICA J. MILTON

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

1660 L St., NW, Suite 12

Washington, DC 20036

MATTHEW P. CAVEDON

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

ADAM KLEVEN

Counsel of Record

EPHRAIM WERNICK

MICHAEL CROWLEY

RYAN SUBEL

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6575

akleven@velaw.com

Counsel for Amici Curiae

(additional counsel on signature page)

TABLE OF CONTENTS

Page

Table of Authorities .................................................... II

Interest of Amici Curiae ............................................. 1

Introduction and Summary of Argument ................... 3

Argument ..................................................................... 7

I.

There Is A Longstanding Split Among Federal

Circuit Courts And State Courts Regarding

When Defendants Lose Their Double Jeopardy

Rights In The Context Of Mistrials...................... 7

II. The Decision Below Is Wrong. ............................ 11

A. Double Jeopardy Principles Demand A

Clear Showing Of Implied Consent, Which

Is Not Met Here. ........................................... 13

B. The Fifth Circuit’s Manifest Necessity

Decision Contravenes This Court’s

Precedent. ..................................................... 17

III. The Questions Presented Are Important And

High Stakes For Criminal Defendants. ............. 20

Conclusion.................................................................. 23

(I)

II

TABLE OF AUTHORITIES

Cases:

Page(s)

Arizona v. Washington,

434 U.S. 497 (1978) .......................... 3, 17, 18, 19, 22

Camden v. Circuit Court,

892 F.2d 610 (7th Cir. 1989) ............................ 10, 15

Commonwealth v. Fredericks,

340 A.2d 498 (Pa. Super. Ct. 1975) ......................... 7

Commonwealth v. Johnson,

231 A.3d 807 (Pa. 2020) ......................................... 20

Davis v. Brown,

664 N.E.2d 884 (N.Y. 1996) ......... 7, 8, 12, 13, 20, 22

Douglas v. Alabama,

380 U.S. 415 (1965) ................................................ 15

Downum v. United States,

372 U.S. 734 (1963) .............................. 12, 15, 19, 23

Glover v. McMackin,

950 F.2d 1236 (6th Cir. 1991) ............................ 8, 17

Green v. United States,

355 U.S. 184 (1957) ................................................ 12

Holguin-Hernandez v. United States,

589 U.S. 169 (2020) ................................................ 15

Imbler v. Pachtman,

424 U.S. 409 (1976) ................................................ 22

Love v. Morton,

112 F.3d 131 (3d Cir. 1997) ..................... 7, 8, 15, 21

Lovinger v. Circuit Court,

845 F.2d 739 (7th Cir. 1988) ............ 8, 14, 16, 18, 22

III

Cases—Continued:

Page(s)

Oregon v. Kennedy,

456 U.S. 667 (1982) ...................................... 3, 12, 20

People v. Lovinger,

473 N.E.2d 980 (Ill. App. Ct. 1985) ......................... 7

Richardson v. United States,

468 U.S. 317 (1984) .................................................. 3

Routh v. United States,

483 A.2d 638 (D.C. 1984) ....................................... 19

Sanchez v. United States,

919 A.2d 1148 (D.C. 2007) ........................... 9, 14, 16

State v. Grays,

854 S.E.2d 457 (N.C. Ct. App. 2021) ..................... 17

State v. Nilson,

854 P.2d 1029 (Utah Ct. App. 1993) ....... 8, 9, 13, 15

United States v. Beckerman,

516 F.2d 905 (2d Cir. 1975) ................................... 10

United States v. Bundy,

968 F.3d 1019 (9th Cir. 2020) ........................... 17-18

United States v. DiFrancesco,

449 U.S. 117 (1980) ................................................ 18

United States v. Dinitz,

424 U.S. 600 (1976) ............................... 2-3, 7, 12, 21

United States v. DiPietro,

936 F.2d 6 (1st Cir. 1991) ...................................... 11

United States v. Gaytan,

115 F.3d 737 (9th Cir. 1997) .................................... 8

United States v. Ham,

58 F.3d 78 (4th Cir. 1995) ...................................... 10

IV

Cases—Continued:

Page(s)

United States v. Jorn,

400 U.S. 470 (1971) ................................................ 21

United States v. Mastrangelo,

662 F.2d 946 (2d Cir. 1981) ..................................... 9

United States v. Perez,

22 U.S. (9 Wheat.) 579 (1824).......................... 17, 18

United States v. Shafer,

987 F.2d 1054 (4th Cir. 1993) .......................... 17, 18

Walck v. Edmondson,

472 F.3d 1227 (10th Cir. 2007) .............................. 19

Walck v. Edmondson,

No. 05-cv-430, 2005 WL 1907347 (W.D. Okla.

Aug. 10, 2005) ........................................................ 19

Walker v. United States,

317 A.3d 388 (D.C. 2024) ................................. 19, 20

Weston v. Kernan,

50 F.3d 633 (9th Cir. 1995) .................... 8, 18, 21, 22

Constitutional Provisions:

U.S. Const. amend. V ................................................ 11

Rules:

Fed. R. Crim. P. 26.3 ................................................. 16

V

Other Authorities:

5 Lafave, Wayne R. et al.,

Criminal Procedure (2d ed. 1999) ......................... 19

Fed. R. Crim. P. 26.3 advisory committee’s note

(1993) ...................................................................... 16

INTEREST OF AMICI CURIAE 1

Founded in 1958, the National Association of Criminal Defense Lawyers (“NACDL”) is a nonprofit voluntary professional bar association that works on behalf

of criminal defense attorneys to ensure justice and due

process for those accused of crime or misconduct. It

has nationwide membership of many thousands of direct members, and up to 40,000 with affiliate members. NACDL’s members include private criminal defense lawyers, public defenders, military defense counsel, law professors, and judges. NACDL is the only nationwide professional bar association for public defenders and private criminal defense lawyers. NACDL

is dedicated to advancing the proper, efficient, and just

administration of justice. It files many amicus briefs

each year in this Court, and in other federal and State

courts around the country, providing amicus assistance in cases presenting issues of broad importance

to criminal defendants, criminal defense lawyers, and

the criminal justice system.

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Project on

Criminal Justice was founded in 1999 and focuses on

the scope of substantive criminal liability, the proper

and effective role of police in their communities, the

1 No counsel for any party authored this brief in whole or in

part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this

brief. No entity or person aside from amici curiae, their members,

or their counsel made any monetary contribution intended to

fund the preparation or submission of this brief. All parties were

given timely notice of the intent to file this brief.

(1)

2

protection of constitutional and statutory safeguards

for criminal suspects and defendants, citizen participation in the criminal justice system, and accountability for law enforcement. Cato regularly advocates for

a robust interpretation of the Fifth Amendment’s Double Jeopardy Clause, as envisioned by the Framers in

the Constitution, as an important check on prosecutorial excesses and a vital bulwark for liberty.

Amici have profound concerns about the Fifth Circuit’s decision below and a strong interest in the outcome of this case. The decision below undermines bedrock constitutional Double Jeopardy protections and

reflects a longstanding split of authority regarding the

standard for determining when defendants lose their

Double Jeopardy rights in the context of mistrials.

Worse, the case arises from a mistrial caused by pervasive prosecutorial errors and gives the Government

the benefit of a re-do after a free trial run of its case.

If permitted to stand, the Fifth Circuit’s rule would

create an uneven playing field tilted firmly in favor of

permitting re-prosecutions, while criminal defendants’

rights fall by the wayside. Defendants bear the financial, emotional, and strategic burdens when retried after a mistrial; their constitutional right against Double Jeopardy cannot be so easily lost.

Amici submit this brief to explain that, in order to

find implied consent to a mistrial (and thus a forfeiture of Double Jeopardy rights), the circumstances

must clearly and unequivocally indicate that defendants impliedly consent. That standard protects a key

Double Jeopardy right: “that the defendant retain primary control over the course to be followed in the

event” of “prosecutorial error.” United States v. Dinitz,

3

424 U.S. 600, 609 (1976). But the decision below

stretched to find any ambiguity in the record—even

where there was a written objection to a mistrial—and

then resolved that purported ambiguity against the

defendant. That is bad law and bad constitutional policy. This case also presents an opportunity to clarify

that “the strictest scrutiny is appropriate when,” as

here, the Government causes a mistrial, and that “the

prosecutor” shoulders the “heavy” burden to show

manifest necessity for a mistrial. Arizona v. Washington, 434 U.S. 497, 505, 508 (1978).

INTRODUCTION AND

SUMMARY OF ARGUMENT

It has been four decades since this Court has heard

a case at the intersection of the Double Jeopardy

Clause and mistrials. See Oregon v. Kennedy, 456 U.S.

667 (1982); Richardson v. United States, 468 U.S. 317

(1984). Meanwhile, the federal courts of appeals and

State courts have diverged on the proper standard for

determining when defendants impliedly consent to

mistrials, and thus lose their Double Jeopardy protection against later prosecutions. When defendants do

not consent, they may be retried only if the Government can show a manifest necessity for mistrial. The

decision below is wrong—on both consent and manifest necessity—and reveals a sharp conflict between

competing approaches. This case presents an opportunity to clarify the constitutional guardrails in place

for criminal defendants who face the prospect of a mistrial, which here was caused by pervasive prosecutorial errors.

1. The decision below is reflective of a longstanding

split among both federal and State courts regarding

4

the standard for determining when defendants lose

their Double Jeopardy rights in the context of mistrials. Some courts apply a high standard for finding implied consent to a mistrial, which appropriately safeguards Double Jeopardy rights. Those courts construe

doubt against finding consent and require that the circumstances clearly and positively indicate that the defendant did consent. Others, like the Fifth Circuit, apply a different and lower standard, under which doubt

is construed toward finding implied consent and which

effectively requires defendants to expressly make

clear they did not consent.

2. The higher standard for finding implied consent

is consistent with fundamental Double Jeopardy principles. Defendants have the primary right to have

their case completed before the first jury. When prosecutorial errors raise the prospect of disrupting that

right, defendants retain the right to choose whether to

request a new trial or continue to defend the case before that first jury. Any ambiguity in this inquiry

must be resolved in favor of protecting defendants’

Double Jeopardy rights.

The issue of which standard applies is outcome determinative in this case. Just hours before the district

court’s sua sponte mistrial declaration, Scott Breimeister (the defendant) filed a written objection specifically

opposing a mistrial—unless certain conditions were

met, the fundamental ingredient of which was protection against a second prosecution. That ingredient

was missing in the district court’s sua sponte mistrial

ruling. And in that ruling, the court stated that “additional comment[s]” would probably not “alter” the

decision. Petition (“Pet.”) 4 (quoting ROA.9127).

5

Faced with such facts, courts in several jurisdictions

would find that the defendant did not impliedly consent to a mistrial—nor would they require defendants

to renew a futile objection to clear up any ambiguity.

But other courts, including the Fifth Circuit, find implied consent—here, because the court below believed

there was “lack of clarity” regarding the objection to a

mistrial, and Breimeister should have (but failed to)

contemporaneously renew his objection to clear up a

purported ambiguity with that objection. Petition Appendix (“Pet. App.”) 12a. The Fifth Circuit’s decision

cannot be reconciled with deeply rooted Double Jeopardy Clause principles and has grave consequences.

Because the decision below was wrong about consent, the Government can only re-prosecute Breimeister if there was a manifest necessity for mistrial. The

Government’s self-inflicted discovery errors cannot

meet that standard. Indeed, the decision below does

not even mention whether the Government met its

requisite heavy burden to show manifest necessity. To

the contrary, the decision does what the Double Jeopardy Clause strictly forbids: grants a mistrial that allows the prosecution to strengthen its case—based on

its own legal violations—while disadvantaging the defendant.

And in cases of stark prosecutorial errors like this

one, the “strictest scrutiny” applies. The Fifth Circuit

erroneously applied a watered-down standard of review because the Government’s discovery errors were

unintentional and not in bad faith. Intent and bad

faith are irrelevant to whether the “strictest scrutiny”

applies, as other courts have so held in accord with this

Court’s precedent. The decision below reaches an

6

outcome rejected by other courts, whereby a defendant

is penalized for prosecutorial errors if that defendant

cannot prove intentional misconduct, yet the misconduct nonetheless warrants a mistrial over a defendant’s objection.

3. Finally, the questions presented are critically

important, and this Court has yet to articulate the constitutional guardrails that apply in the implied consent analysis. Mistrial decisions are high stakes and

made in hectic, fast-paced trial environments. Such

circumstances require resolving any ambiguities in favor of defendants’ liberty and Double Jeopardy rights.

Defendants bear the emotional, financial, and strategic burdens of successive trials, and they should not be

penalized for prosecutorial self-inflicted errors. With

the mistrial here, Breimeister lost the strategic benefit

of using such errors to impeach the Government’s case

in the first trial. What is more, the decision below

would give the Government the benefit of retrying

Breimeister using information gained in that first trial

concerning the strengths and weaknesses of its case.

Prosecutors should be held accountable for the risk

they assume when impaneling a jury without first disclosing legally-required material—jeopardy attaching,

barring re-prosecution, and having their case in the

first trial undermined by those due process violations.

7

ARGUMENT

I. There Is A Longstanding Split Among Federal

Circuit Courts And State Courts Regarding

When Defendants Lose Their Double

Jeopardy Rights In The Context Of Mistrials.

Courts have long recognized that different jurisdictions “have taken different approaches in determining” whether defendants have impliedly consented to

a mistrial. See Love v. Morton, 112 F.3d 131, 138 (3d

Cir. 1997); People v. Lovinger, 473 N.E.2d 980, 986 (Ill.

App. Ct. 1985); Commonwealth v. Fredericks, 340 A.2d

498, 501 (Pa. Super. Ct. 1975). The disagreement boils

down to selecting the proper analytical lens for determining implied consent.

Given the myriad of factual situations in which

mistrial issues can arise—and the heated trial environment—there is often ambiguity regarding whether

implied consent exists. When courts sift through such

ambiguity, “[t]he important consideration,” for Double

Jeopardy purposes, “is that the defendant retain primary control over the course to be followed” when

“prosecutorial error” could warrant a mistrial. United

States v. Dinitz, 424 U.S. 600, 609 (1976). The “cornerstone” of Double Jeopardy “is the defendant’s right,

in the event of prosecutorial * * * error * * * , to choose

whether to request a new trial before an untainted

jury or to continue to defend the case before the already empaneled jury.” Davis v. Brown, 664 N.E.2d

884, 886 (N.Y. 1996).

1. Adhering to those bedrock Double Jeopardy

principles, several courts rightly set a high bar for

8

finding implied consent. These courts hold that a “defendant’s consent to mistrial may be inferred ‘only

where the circumstances positively indicate a defendant’s willingness to acquiesce in the mistrial order’”—

a standard which looks for “clear” indications that a

defendant meant to consent. Weston v. Kernan, 50

F.3d 633, 637-638 (9th Cir. 1995) (quoting Glover v.

McMackin, 950 F.2d 1236, 1240 (6th Cir. 1991)).

Other courts similarly frame the standard as mandating “unequivocal acquiescence to a mistrial without

prejudice.” Davis, 664 N.E.2d at 887; State v. Nilson,

854 P.2d 1029, 1032 (Utah Ct. App. 1993) (circumstances must “unequivocally constitute consent”).

This standard does “not search for consent,” and instead asks whether consent is “clearly evident on the

record.” Lovinger v. Circuit Court, 845 F.2d 739, 744

(7th Cir. 1988). Courts “must proceed with caution in

inferring consent,” even where there is a failure to object, and “close cases” should “be resolved in favor of

the liberty of a citizen” and Double Jeopardy protections. Love, 112 F.3d at 138 (citation omitted).

Under this approach, courts have thus declined to

find implied consent in various circumstances and resolved doubts in favor of defendants’ Double Jeopardy

rights. E.g., United States v. Gaytan, 115 F.3d 737,

744 (9th Cir. 1997) (defense counsel’s statement before

mistrial declaration was “ambiguous,” and there were

no “affirmative” “comments implying consent after the

court announced its ruling”); Weston, 50 F.3d at 637

(whether defense motion for mistrial was with or without prejudice was “ambiguous”); Lovinger, 845 F.2d at

743-744 (prior defense mistrial motion did not constitute implied consent to a later mistrial declaration

9

based on other grounds); United States v. Mastrangelo,

662 F.2d 946, 950 (2d Cir. 1981) (“for all practical purposes, though not in so many words,” defendant withdrew his mistrial motion); Sanchez v. United States,

919 A.2d 1148, 1151-1152 (D.C. 2007) (noting “confusion” regarding a jurisdictional defect in case and defense’s initial “silen[ce]” regarding a mistrial, but

“what matters” is that defendant “ultimately” objected). In other words, “the equivocation or ambiguity

of a defendant’s response are important factors to consider,” and “[a]ny doubts or close calls will be resolved

in a defendant’s favor.” Nilson, 854 P.2d at 1032.

2. Contrary to the above approach, other courts apply a far lower standard for finding implied consent,

and effectively require defendants to expressly make

clear that they did not consent.

The decision below exemplifies how this side of the

split is a near polar opposite. For starters, it is undisputed that Breimeister objected to a mistrial. The issue is the clarity of that objection. Pet. App. 10a-11a.

According to the Fifth Circuit, “the critical question”

was “whether Breimeister’s anticipatory objection

clearly applied to the mistrial as declared by the district court”—and, according to the court, the onus was

on Breimeister to clear up that perceived ambiguity.

Pet. App. 11a-12a. The court then held that the “lack

of clarity” meant that Breimeister was required to renew his objection—“to object contemporaneously” to

the mistrial declaration—and his “failure” to do so

“constitute[d] implied consent to the mistrial.” Pet.

App. 12a.

10

The Fifth Circuit is not alone in adopting such a

low bar for implied consent. In United States v. Beckerman, 516 F.2d 905 (2d Cir. 1975), the court looked

for whether the defendant said anything “to dispel the

inference of” consent based on his partial silence—

even though the defendant offered an alternative of

“reinstruct[ing]” the jury on the very issue that raised

the possibility of mistrial, and the district court otherwise “cut off” defense counsel from speaking. Id. at

909 & n.8 (finding implied consent even while recognizing “the difficulty” of defense counsel’s “position”).

The Seventh Circuit has held that a defendant impliedly consented to a mistrial when there was only a

“minimal * * * opportunity to object, albeit in the presence of the jury while the mistrial was being declared,”

see Camden v. Circuit Court, 892 F.2d 610, 615 (7th

Cir. 1989) (footnote omitted)—effectively requiring defense counsel to interrupt the judge mid-mistrial declaration in front of the jury, id. at 619-620 (Posner, J.,

dissenting) (the defense first learned about the possibility of mistrial “when the judge declared the mistrial

and excused the jurors”); see also United States v.

Ham, 58 F.3d 78, 84 (4th Cir. 1995) (defense counsel

“could have interrupted the judge before he discharged

the jury”).

The First Circuit has also suggested that an objection to the jury’s discharge after a mistrial declaration

would be insufficient to overcome a finding of implied

consent, and has found implied consent even where

“the court did not explicitly notify counsel that it was

considering a mistrial” and “the jury was dismissed

when the mistrial was declared”—even though the

11

defendant did move for a “judgment of acquittal” to bar

a re-prosecution. United States v. DiPietro, 936 F.2d

6, 10-11 (1st Cir. 1991).

The problem is that anytime a defendant does not

specifically and clearly object, consent to a mistrial can

only be implied (not express). Faced with that lack of

clarity, the standard employed by the Fifth Circuit and

other courts leans toward a finding of implied consent

and requires sufficiently clear indications that the defendant did not consent. But what indications would

count as sufficiently clear to overcome a finding of implied consent and clean up any perceived ambiguity—

besides a contemporaneous express objection—is unclear. It cannot be that the only way to negate implied

consent is for defendants to expressly not consent.

II. The Decision Below Is Wrong.

The Double Jeopardy Clause and its driving principles require a clear showing to imply a defendant’s

consent to a mistrial and the corresponding forfeiture

of Double Jeopardy protections. And where, as here, a

mistrial is due to self-inflicted prosecutorial errors,

Double Jeopardy protections should be at their peak.

The Fifth Amendment provides that “[n]o person

shall * * * be subject for the same offence to be twice

put in jeopardy of life or limb.” U.S. Const. amend. V.

This “deeply ingrained” principle protects defendants

from the Government making “repeated attempts to

convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and ordeal

and compelling him to live in a continuing state of

12

anxiety and insecurity.” Green v. United States, 355

U.S. 184, 187 (1957).

A “principal thread[] * * * embodied in the Double

Jeopardy Clause is the right of the defendant to have

his trial completed before the first jury empaneled to

try him.”

Oregon v. Kennedy, 456 U.S. 667, 673

(1982). Once the first jury is selected and sworn, the

default rule is that defendants are entitled to a verdict

from that jury unless they validly consent or the prosecution proves a “manifest necessity” for a mistrial.

See id. at 672-673. Any doubt in this inquiry must be

resolved “in favor of the liberty of the citizen” defendant, not the Government’s ability to retry that defendant. Downum v. United States, 372 U.S. 734, 738

(1963) (citation omitted). That is because the cornerstone of Double Jeopardy “is that the defendant retain

primary control over the course to be followed in the

event of [prosecutorial] error.” Dinitz, 424 U.S. at 609;

see Davis, 664 N.E.2d at 886.

The decision below contravenes these settled principles in two respects: (A) its implied consent finding;

and (B) the fatally flawed manifest necessity analysis.

13

A.

Double Jeopardy Principles Demand A

Clear Showing Of Implied Consent,

Which Is Not Met Here.

1. A standard that requires clear, unequivocal, and

positive circumstances in order to find implied consent

is in accord with fundamental Double Jeopardy principles, and safeguards against the concerns at which

the Clause is aimed. An application of the correct

standard to the facts of this case illustrates why. That

also shows the split of authority is outcome determinative in this case, making it an ideal vehicle for this

Court to decide the questions presented.

To safeguard Double Jeopardy rights, there must

be “unequivocal acquiescence to a mistrial without

prejudice,” Davis, 664 N.E.2d at 887, and “[a]ny doubts

or close calls” must “be resolved in a defendant’s favor.” Nilson, 854 P.2d at 1032. The fact that Breimeister specifically objected to a mistrial should thus be a

heavy, if not decisive, weight on the side of declining

to find implied consent. Yet the Fifth Circuit viewed

“the critical question” as whether a defendant’s objection “clearly applied to the mistrial as declared by the

district court,” with the burden placed on the defendant to make his lack of consent expressly clear. Pet.

App. 10a-12a. That is the wrong analytical starting

point, asks the wrong question, and decisively stacks

the deck against defendants.

Breimeister’s written filing explicitly “oppose[d] a

mistrial,” unless certain conditions were met. Pet.

App. 5a. The Fifth Circuit’s view that those conditions

were “arguably satisfied,” Pet. App. 11a-12a, completely ignores the fundamental point of the objection.

14

Breimeister expressly did not want the Government to

“get a ‘do-over,’ or a second bite at the apple”—i.e., retry him—and he clearly stated that “[i]t would violate

due process if the Government [were] allowed to retry”

him. Pet. 12 (quoting written objection). The implication of these conditions is obvious: He wanted any dismissal to be with prejudice, such that Double Jeopardy

protections would kick in. That did not occur, so

Breimeister did not consent. See Sanchez, 919 A.2d at

1151-1152 (defense’s position was “that a mistrial

would be in order provided it meant dismissal . . . with

prejudice” (cleaned up)); Lovinger, 845 F.2d at 743-744

(no implied consent where the defense moved for mistrial, but then the court later declared a mistrial on

other grounds).

But the Fifth Circuit construed doubt against

Breimeister and required that he clarify a perceived

ambiguity with an additional, renewed objection—

which would have been pointless, if not impossible.

Pet. App. 10a-12a. In its sua sponte mistrial ruling,

the district court stated that “additional comment[s]”

would probably not “alter” its decision. Pet. 4 (quoting

ROA.9127). The district court thus declared a mistrial

without taking contemporaneous comments from the

parties and left the courtroom; only after the mistrial

ruling and a short recess, just before the jury was excused, did the court give a brief opportunity for the

parties to be heard. Pet. 4-5; Pet. App. 10a n.1. That

was too little, too late.

As Judge Posner put it, courts “should not require

defense counsel, on pain of sacrificing a client’s constitutional right, to make futile gestures” that will not

15

change a trial judge’s mistrial decision. Camden, 892

F.2d at 619-620 (Posner, J., dissenting); accord Douglas v. Alabama, 380 U.S. 415, 421-423 (1965) (repeated

objections not required in circumstances “plainly implying that further objection” would have been “futile”); Holguin-Hernandez v. United States, 589 U.S.

169, 173-174 (2020) (“By ‘informing the court’ of the

‘action’ he ‘wishes the court to take,’” a defendant

“brings to the court’s attention his objection to a contrary decision” (citation omitted)).

“[T]he sequence of events leading to” mistrial is

also important in this inquiry, Nilson, 854 P.2d at

1032, and it strongly tilts toward “resolv[ing] any

doubt” in defendant’s favor, not the Government’s.

See Downum, 372 U.S. at 738; Love, 112 F.3d at 138.

Five weeks into this trial, a series of prosecutorial

discovery errors came to light resulting in the district

court ordering the Government to produce reams of belated disclosures to defendants. This occurred on a

highly accelerated timeline, beginning on a weekend

and finishing “[o]vernight” the next Monday. Pet.

App. 1a-5a. At the same time, the court ordered defendants to “provide their requested relief in writing

by the following morning” (Tuesday). Pet. App. 3a-4a.

That is the context in which Breimeister submitted his

written objection to a mistrial—overnight, after digesting a mountain of new information five weeks into

trial. This context makes the Fifth Circuit’s stilted

analysis even more egregious.

On these facts, courts in several jurisdictions would

correctly find that Breimeister did not impliedly

16

consent to a mistrial—nor would they have required

him to renew a futile objection to clear up any purported ambiguity. Supra pp.7-9. But not so in the

Fifth Circuit, nor in other courts adopting a similar

approach to the decision below. Supra pp.9-11.

The decision below erroneously “read an objection

to a mistrial as its opposite—consent—merely because” Breimeister stated that, if the court were to sua

sponte declare a mistrial, he wanted it to be clear it

was not on his motion. See Sanchez, 919 A.2d at 1152;

Pet. 4; Pet. App. 6a, 11a. Under the Fifth Circuit’s

“far-reaching interpretation” of implied consent,

“[n]early every objection or complaint by a defendant

regarding the fairness of the proceedings could be construed” as “a waiver” of Double Jeopardy protections.

Lovinger, 845 F.2d at 744. That cannot be the law.

2. The decision below also creates uncertainty in

going beyond Federal Rule of Criminal Procedure

26.3’s requirement that “[b]efore ordering a mistrial,”

the parties must have “an opportunity to comment on

the propriety of the order, to state whether [they] consent[] or object[], and to suggest alternatives.” That is

exactly what Breimeister did. Rule 26.3 was specifically “designed to reduce the possibility of an erroneously ordered mistrial which could produce adverse

and irretrievable consequences”—like the loss of Double Jeopardy rights—and not “change the substantive

law.” See Fed. R. Crim. P. 26.3 advisory committee’s

note (1993). Yet the Fifth Circuit and other courts

have added an atextual rule requiring that defendants

object again, after the court orders a mistrial, at least

in some indeterminate circumstances.

“Consent

17

should not be assessed by the mechanical application

of an absolute rule” like that adopted below. See

Glover, 950 F.2d at 1240.

B.

The Fifth Circuit’s Manifest Necessity

Decision Contravenes This Court’s

Precedent.

1. Because the record belies a finding of implied

consent, retrying Breimeister would only be permissible if there was a manifest necessity for mistrial. The

Government’s self-inflicted discovery errors here cannot meet that standard.

This Court has held that “the prosecutor must

shoulder the burden of justifying the mistrial * * * to

avoid the double jeopardy bar.” Arizona v. Washington, 434 U.S. 497, 505 (1978). That “burden is a heavy

one,” requiring a showing of “a ‘high degree’” of necessity. Id. at 505-507. Rightly so, given the defendant’s

“valued right to have the trial concluded by a particular tribunal.” Id. at 505. And the discretionary power

of courts to declare mistrials on this basis should be

exercised “with the greatest caution, under urgent circumstances, and for very plain and obvious causes.”

United States v. Perez, 22 U.S. (9 Wheat.) 579, 580

(1824) (Story, J.).

Here, the Government “proffered alternatives to a

mistrial,” Pet. App. 6a, and it otherwise cannot carry

its heavy burden based on the effects of its “self-inflicted injury” of discovery violations. United States v.

Shafer, 987 F.2d 1054, 1058-1059 (4th Cir. 1993);

State v. Grays, 854 S.E.2d 457, 464-466 (N.C. Ct. App.

2021); accord United States v. Bundy, 968 F.3d 1019,

18

1045 (9th Cir. 2020) (affirming dismissal of indictment

with prejudice for same reason). The Government witnesses’ “inevitable impeachment by the wrongfully

withheld evidence is not a permissible reason to end

the trial.” Shafer, 987 F.2d at 1058. While the discovery violations may have tainted the jury, Breimeister

would have waived any prejudice as to those violations

by choosing to go forward with the first jury and using

them to impeach the Government’s case. That logical

decision should be respected, because the discovery violations hurt the Government’s case. Ibid.; cf. Weston,

50 F.3d at 639; Lovinger, 845 F.2d at 743-744.

The decision below thus greenlights what the Double Jeopardy Clause strictly forbids: a mistrial that

allows the prosecution to strengthen its case, giving it

an unfair advantage. United States v. DiFrancesco,

449 U.S. 117, 128 (1980). It does so without a single

mention of the prosecutor’s burden. That alone requires reversal.

2. The Fifth Circuit affirmed the district court’s

manifest necessity determination because the discovery errors were “inadvertent,” “unintentional,” and not

in “bad faith.” Pet. App. 15a-17a. That reasoning

again botches the manifest necessity standard.

The standard of review turns on the basis for mistrial. Deference is at its height when cases present a

“classic basis” for a mistrial, Washington, 434 U.S. at

509, like the prototypical example of a deadlocked

jury, Perez, 22 U.S. (9. Wheat.) at 579-580. When the

basis for mistrial is prosecutorial error, “the strictest

19

scrutiny is appropriate.” See Washington, 434 U.S. at

508.

This Court has given two examples of when such

scrutiny is appropriate: the “unavailability” of “critical

prosecution evidence,” or “when there is reason to believe that the prosecutor” is harassing the defendant.

Washington, 434 U.S. at 508. Only one of those nonexhaustive examples is concerned with the prosecutor’s intent behind the error. Indeed, strict scrutiny is

warranted based on the error in Downum, 372 U.S. at

737-738 (unavailability of witness), even when “nothing” in that case “suggest[ed]” that the prosecutor

“purpose[fully]” sought to gain an “advantage” with a

second, different jury. Id. at 742 (Clark, J., dissenting).

Following this Court’s precedent, other courts have

correctly concluded it “cannot be” that the “‘strictest

scrutiny’ standard applies only when there is intentional” or bad-faith misconduct. See Walker v. United

States, 317 A.3d 388, 409 n.13 (D.C. 2024) (citing

Routh v. United States, 483 A.2d 638, 642 (D.C. 1984));

Walck v. Edmondson, No. 05-cv-430, 2005 WL

1907347, at *4 (W.D. Okla. Aug. 10, 2005), aff’d, 472

F.3d 1227, 1239-1240 & 1236 n.4 (10th Cir. 2007) (reviewing “using the ‘strictest scrutiny,’” and noting “intentionally created” errors are one factor of many (citing 5 Wayne R. Lafave et al., Criminal Procedure

§ 25.2(c) n.18 (2d ed. 1999)).

Indeed, intentional prosecutorial misconduct can

automatically bar retrial—i.e., the analysis “ends” and

“there is no scrutiny at all of whether manifest

20

necessity existed, because a retrial is precluded regardless.” See Walker, 317 A.3d at 409 n.13. That is

consistent with this Court’s decision in Kennedy, holding that prosecutorial misconduct intended to goad the

defendant into moving for a mistrial (which would otherwise waive Double Jeopardy protections) bars reprosecution. 456 U.S. at 673-679. Similarly, many

State courts have adopted broader Double Jeopardy

rules barring re-prosecutions in cases falling short of

intentional misconduct. See generally Commonwealth

v. Johnson, 231 A.3d 807, 825 & n.12 (Pa. 2020) (collecting cases).

The Fifth Circuit, however, erroneously took a requirement for an automatic bar to retrial (intentional

misconduct) and improperly imported it into a requirement for applying the “strictest scrutiny” standard for

determining manifest necessity. At bottom, the Fifth

Circuit’s holding that there was “manifest necessity”

for a mistrial, Pet. App. 14a-19a, reflects an outcome

rejected by other courts “whereby the defendant” is

“penalized when” prosecutorial error, “though not rising to the level of [intentional] misconduct * * * , nevertheless would warrant the grant of a mistrial.” See

Davis, 664 N.E.2d at 887. This Court should reject

that holding too.

III. The Questions Presented Are Important

And High Stakes For Criminal Defendants.

The questions presented are critically important

and arise every time there is the prospect of a mistrial.

But this Court has yet to articulate the constitutional

guardrails that apply in the implied consent analysis

21

in particular, which is needed given the conflicting authorities. Supra § I.

Mistrial decisions are high stakes and often abrupt—especially when made, as here, deep into trial

and are prompted by prosecutorial errors. Defendants

face a “Hobson’s Choice”: Either continue with a trial

tainted by error (though not one that would necessarily lead to reversal on appeal) and end the case with

the first jury; or give up the well-established right to

have the case tried before the first jury. Dinitz, 424

U.S. at 608-609. And this choice is made in a criminal

trial that is, “even in the best of circumstances, a complicated affair to manage,” United States v. Jorn, 400

U.S. 470, 479-480 (1971) (plurality op.), and often

comes with a “hectic atmosphere.” See Love, 112 F.3d

at 138-139. That environment lends itself to the ambiguity present in many implied consent cases. Here,

for example, late-breaking prosecutorial discovery errors caused the hectic atmosphere, and those errors

were being addressed on an incredibly fast-paced timeline.

These circumstances call out for resolving doubts

in favor of defendants’ Double Jeopardy rights and ensuring their consent to a mistrial cannot be implied

absent clear and unequivocal indications to the contrary.

Consider next the asymmetry between defendants

and the Government. Defendants “live in a constant

state of anxiety and insecurity” when under threat of

prosecution, Weston, 50 F.3d at 636, and thus bear “the

emotional and financial hardship” of being put in

22

jeopardy. Lovinger, 845 F.2d at 743. Yet here,

Breimeister was effectively “penalized when the prosecution’s” errors, “though not rising to the level of” intentional “misconduct,” nevertheless “warrant[ed] the

grant of a mistrial.” See Davis, 664 N.E.2d at 887.

That result gave the prosecution the benefit of a free

“trial run of [their] case” in “the first proceeding,”

Washington, 434 U.S. at 508 n.24 (citation omitted),

while causing the defendant to again bear the emotional and financial hardships of a successive prosecution.

Worse still, Breimeister lost the ability to use the

prosecutorial errors to his advantage—to try to impeach the Government’s case—in a second trial, which

he otherwise could have done at the first trial. Courts

should “avoid giving the prosecution [this] unfair” advantage of “retry[ing] the defendant using information

gained from the first trial concerning the strengths

and weaknesses of [its] case,” Weston, 50 F.3d at 636,

while strategically disadvantaging defendants in their

use of prosecutorial errors when defendants decide to

proceed with the first tainted trial. “[T]he defense may

effectively impeach” the prosecution’s case, as

Breimeister wanted to do, “by pointing out * * * impropriet[ies].” Lovinger, 845 F.2d at 744.

Indeed, under the Fifth Circuit’s rule it is entirely

unclear whether there is any practical accountability

mechanism for violations like those here. Prosecutors

cannot be held civilly liable based partly on procedural

checks like “the remedial powers of the trial judge” and

“appellate review,” Imbler v. Pachtman, 424 U.S. 409,

427-429 (1976), which should have militated in

23

defendant’s favor here. When prosecutors “impaneled

the jury” without first disclosing legally-required discovery material, they “took a chance” of jeopardy attaching and barring re-prosecution, or otherwise having their case undermined by those due process violations. See Downum, 372 U.S. at 737 (citation omitted).

The Government should now be held accountable for

the risk it assumed—otherwise, the asymmetry between defendants and prosecutors will only become

more severe.

Finally, first principles mandate strong constitutional guardrails for defendants. Defendants have the

primary right to have their case completed before the

first jury. If that right is disrupted by prosecutorial

error, the Double Jeopardy Clause’s North Star guides

courts to side with a defendant’s choice about how to

proceed—with the default of continuing with the first

jury, absent clear and unequivocal circumstances

showing implied consent to a mistrial (or express consent). Without such consent, the prosecutor shoulders

the heavy burden to show manifest necessity for any

mistrial.

CONCLUSION

For these reasons, and those set forth in the petition, the petition for a writ of certiorari should be

granted.

24

Respectfully submitted.

BARBARA E. BERGMAN

MONICA J. MILTON

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1660 L St., NW, Suite 12

Washington, DC 20036

MATTHEW P. CAVEDON

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

ADAM KLEVEN

Counsel of Record

EPHRAIM WERNICK

MICHAEL CROWLEY

RYAN SUBEL

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6575

akleven@velaw.com

PARKER J. CRAGG

VINSON & ELKINS LLP

845 Texas Ave.,

Suite 4700

Houston, TX 77002

HENDY POSNER

EMMA SHUCK

VINSON & ELKINS LLP

1114 Avenue of the

Americas, 32nd Floor

New York, NY 10036

Counsel for Amici Curiae

DECEMBER 3, 2025